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Law Professor Neal Katyal on a Second Grand Jury for Clinton August 23, 2000 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

(Findlaw) -- Georgetown University law professor Neal Katyal joined Law Chat on Wednesday, August 23, to discuss the second federal grand jury investigating the Clinton-Lewinsky scandal. Katyal teaches criminal and constitutional law. Law Chat is presented by FindLaw. CNN.com provided a typist for Katyal. The following is an edited transcript of the chat.

CNN Host: What is the Independent Counsel's purpose in seating a second federal grand jury to investigate President Clinton's relationship with former White House intern Monica Lewinsky?

Neal Katyal: Because of grand jury secrecy we really don't know. But Independent Counsel Robert Ray has at least some information tending to suggest that President Clinton committed a crime After all, a majority of the House of Representatives appeared to think this way.

Question from Dem: Will we see witnesses recalled to this second grand jury?

Neal Katyal: Again, grand jury secrecy means we don't have a clear answer. But I would be surprised, since Ray already has volumes of information from the Clinton impeachment.

Question from TwoSuitcases: Will the "secrecy" of this grand jury be as tight as the first?

Neal Katyal: Well, it sure hasn't been yet! Perhaps the recent leak by Judge Cudahay may inspire everyone involved to be quiet this time.

Question from frank: Why did the announcement of a second trial come the day of Al Gore's speech, and not in July?

Neal Katyal: There were a lot of people who blamed Republicans for this maneuver. It turns out that a judge appointed by President Carter was the source of the leak. The timing with the convention was mere coincidence has Judge Cudahay himself has said.

Question from TwoSuitcases: Do you believe that this indictment is anything but political at this time?

Neal Katyal: First, it's important to understand that the president has not been indicted. An indictment is the bringing of criminal charges against someone. Here, all that has happened is that an investigation is under way, and the upshot may be that there will not be an indictment. Furthermore, there's been no serious allegations that the new independent counsel, Robert Ray, has political motivations at all.

Question from frank: Do you think any non-Republicans care about this any more?

Neal Katyal: I certainly don't. No, in all seriousness, there are indications from many members of Congress that they do care and law enforcement always has to take the concerns of Congress into consideration.

CNN Host: Do you expect any new information to be revealed?

Neal Katyal: There is certainly information from the first investigation that has not been released thus far. Many court records are still under seal. But there are strong reasons to think that the hundreds of thousands of pages that have been publicly released are enough to determine the facts in this matter.

CNN Host: Does the rule against double jeopardy apply here?

Neal Katyal: Some people might think that since the president was not convicted in the impeachment, he should not be subject to another criminal investigation for the same offense. But the text of the Constitution, Article I, Section 3, specifically says that impeachments do not preclude further criminal trials arising out of the same conduct. All you lose if you are impeached and convicted, is your job.

Question from denise: Why do you think Paula Jones was not sanctioned by the court when she stated she did not receive merit increases and/or promotions?

Neal Katyal: I am not thoroughly familiar with the facts of the case, but as I recall her work records were a matter of dispute. In such circumstances, judges for good reason, are reluctant to impose sanctions.

Question from MountainMonk: I suspect most Americans will see this as overkill, in the extreme. Doesn't the independent counsel have an obligation to practice prudence, and have some sense of proportionality?

Neal Katyal: The independent counsel, like all Department of Justice employees have an obligation to 'do justice.' To the extent that a second investigation is disproportionate, he should stop it. But remember that he does have indications from a majority of the House of Representatives that the president committed a crime. That does not mean that he should ultimately file an indictment. Indeed the best reason for him not to do so is that no jury is ever likely to convict the president.

Question from alfie: Any information on the make-up of this grand jury?

Neal Katyal: None.

Question from Gator: If a criminal indictment was brought against a sitting president and he was convicted, couldn't he pardon himself, i.e., isn't it pointless?

Neal Katyal: The matter of a self-pardon has never come up before. Some people think that the president cannot pardon himself because that would make him a judge in his own case. That was a conclusion reached by an author in a 1996 Yale Law Journal. I happen to disagree with that reading. I think the president can issue a pardon. But remember, that doesn't make an investigation pointless. After all, a pardon is visible and would go down in the history books.

Question from Jeremiah: Professor, in your opinion, if the evidence submitted in the impeachment hearings had been submitted in a court of law, would Clinton have been convicted or would it be thrown out of court?

Neal Katyal: That is a great and very difficult question. It would have been tried by a jury in Washington, D.C. or possibly Little Rock, and I strongly doubt that a jury in one of those two places would vote to convict Clinton.

Question from Scott_Palmer_4_President_2000: Now that there is no independent council law, how do you propose the public can trust any future investigations as in the Clinton case?

Neal Katyal: The first thing to note is that the IOC law never gave anyone any trust. The attorney general was the centerpiece of that law, and she had to decide whether to appoint an IOC or not. The new regulations issued by the Justice Department, which call for special counsels to be appointed in special circumstances, do a very good job of balancing trust with control.

Question from hurlyburly: Would the operations of a grand jury have superior legal acumen to members of the Senate?

Neal Katyal: Members of those have probably very good legal acumen, but a grand jury is to decide the facts, not the law.

CNN Host: Did the judge who leaked the information violate the law?

Neal Katyal: This is hard to say. Federal Rule of Criminal Procedure 6-E calls for grand jury secrecy, but it is not written to apply to judges This is because there is typically only one judge in a grand jury investigation, not three. So we don't know how to treat the disclosure by a lone judge. However, the Federal Cannon of Judicial ethics does bar judges from commenting on pending cases.

CNN Host: There has been very little criticism of the judge's misstep in this case. Do you suspect that there will be no sanctions imposed on the judge for speaking out of turn?

Neal Katyal: He certainly has suffered a lot of negative publicity. I suspect there probably will be an official investigation. If there isn't, it will probably be because this judge did the right thing after making a mistake by admitting it and taking the blame

Question from denise: What exactly was the purpose of the initial grand jury as they were not included in on the Starr report to the Congress? What is the voting process for a grand jury when seeking an indictment, simple majority?

Neal Katyal: Grand juries have between 16-23 members under the federal rules. At least 12 of them must vote to indict a defendant before an indictment will issue. The initial grand jury that Starr put together developed the information that formed the basis of the report to Congress, a report under the independent counsel act.

CNN Host: What happens next?

Neal Katyal: The investigation will continue. Robert Ray is expected to continue the policy of Judge Starr in not seeking the indictment of a sitting president, and he will probably assess the legal sufficiency of the case against Clinton after Inauguration Day. If he thinks the case sufficient, he will then ask the grand jury to indict Clinton. And then we'll have another media circus.